DATE: 20041012

DOCKET: C41703

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – S. G. (Appellant)

BEFORE: WEILER, GOUDGE and BLAIR JJ.A.

COUNSEL: W. Gerald Punnett for the appellant

Roger A. Pinnock for the respondent

HEARD: October 4, 2004

RELEASED ORALLY: October 4, 2004

On appeal from the conviction entered by Justice Alexander M. Graham of the Ontario Court of Justice dated June 19, 2002.

E N D O R S E M E N T

[1] The appellant was convicted of one count of sexual assault and one count of invitation to sexual touching involving a nine-year old girl and sentenced to nine months imprisonment concurrent. He has served his sentence and appeals against conviction only.

[2] The appellant’s grounds of appeal relate to whether the complainant should have been sworn, the reasonableness of the verdict and whether the evidence of the complainant supported a conviction pursuant to s. 152.

Whether the complainant should have been sworn

[1] The trial judge conducted an inquiry pursuant to s. 16 of the Canada Evidence Act to determine whether she should be permitted to give evidence under oath. The appellant asserts that the questions put to the complainant by the trial judge were leading questions and insufficient to establish that she understood the nature of an oath.

[2] Prior to conducting his inquiry, and again before ruling on the issue, the trial judge asked counsel if they had any other questions that they thought should be put to the complainant, and no questions or objections were put forth. If defence counsel had had any concerns about whether the complainant should be sworn he would have objected at that point and he did not. In any event, even if the inquiry was insufficient to establish that the complainant understood the nature of an oath, the appellant’s counsel concedes that her evidence would nevertheless have been received on a promise to tell the truth which she gave.

Whether the verdict was unreasonable

[3] The appellant’s overall submission is that the verdict was unreasonable. The appellant submits that if the complainant’s evidence was unsworn, it was an error of law and could have affected the weight the judge attached to her evidence. We do not agree. In our opinion to the extent it would have been preferable to ask the ultimate question in a more open ended way, the fact that no objection was taken and no questions were put leads us to conclude that the objection does not rise to a reversible error. Assuming there was a procedural irregularity with respect to the reception of the complainant’s evidence, it could not possibly affect the reasonableness of the verdict. The complainant gave detailed evidence with respect to the second incident that the trial judge accepted.

Whether the evidence supports a conviction under [s. 152](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

[4] The appellant was involved in a relationship with the complainant’s mother. On March 10, 2002 the appellant was baby-sitting the complainant. The complainant alleged that the appellant twice asked her if he could perform oral sex on her. She refused. She further alleged that on an earlier occasion the appellant had asked her if he could perform oral sex on her, and she allowed him to do so.

[5] The appellant argues that there was no evidence to support the conviction of invitation to sexual touching under s. 152 of the Criminal Code. He says this because the complainant’s evidence is that the appellant asked the complainant to allow him to touch her in a sexual manner rather than the reverse. We do not agree. Section 152 must be interpreted purposively. See R. v. Fong (1994) 1994 ABCA 267, 92 C.C.C. (3d) 171, Alta C.A. It is clear that the request by the accused to permit him to touch the complainant’s private parts is an invitation to have her body touch his body for a sexual purpose. The section is designed to encompass exactly such situations.

[6] Accordingly the appeal is dismissed.

“K.M. Weiler J.A.”

“S.T. Goudge J.A.”

“R.A. Blair J.A.”